Man in jail can still jump bail

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Attorneys, don’t let your clients sign signature bonds unless they are actually going to be released.

Not only could it complicate getting credit for time served; it can also expose them to potential bail jumping charges if they violate the conditions of the bond.

Writing on behalf of the Wisconsin Court of Appeals, Judge Michael W. Hoover observed, “[The defendant] was not obligated to sign the bond, especially if he knew he would not be posting cash bond. Thus, while not physically released, Dewitt was released as contemplated by Wis. Stat. sec. 969.02 when he fulfilled the signature bond.”

The defendant, Travis S. Dewitt, was facing seven different charges in three separate cases in Taylor County.

Bond Signed, Not Released

On Jan. 25, 2006, the circuit court held a bond hearing for all three cases. In the misdemeanor case, he imposed a $500 signature bond; in each of the two felony cases, he imposed a $500 cash bond.

The misdemeanor bond, and one of the felony bonds, included a condition that he have no contact with Kayla Langiewicz. Dewitt signed the signature bond, but did not post the cash bonds until Feb. 13, 2006.

Dewitt allegedly called Langiewicz nine times between the date he signed the bond, and when he was released. As a result, the state charged him with nine counts of bail jumping, based on the no contact provision in the misdemeanor case.

Dewitt ultimately entered a plea agreement, under which, among other provisions, he pleaded guilty to three counts of bail jumping.

Dewitt subsequently moved to withdraw his pleas, arguing that the bail jumping charges were “legally unsupportable,” and thus the plea agreement was “illusory.”

The court denied the motions, and the Court of Appeals affirmed.

The appellate court acknowledged that it could dismiss the appeal on waiver grounds, but chose to address the merits.

The bail jumping statute, sec. 946.49, provides that someone who has been released from custody, but who intentionally fails to comply with the terms of the bond is guilty of bail jumping.

However, the statute does not define “released.”

No Discharge Needed

The court acknowledged that the common meaning of the term contemplates physical discharge from custody.

Nevertheless, it concluded that Dewitt could violate the condition of his bond, despite never actually being “released.”

The court noted that, pursuant to sec. 969.02(3)(d), a court can release a defendant, with a condition that he return to custody after specified hours.

Therefore, the court concluded, “Because it would be absurd to conclude that conditions of release would then apply when the defendant was outside the jail, but be ‘turned off’ upon return to custody, it is evident that ‘release’ refers to the defendant posting the bond, be it signature or cash, and need not be accompanied by the defendant’s physical departure from the jailhouse.”

However, attorney William E. Schmaal, who represents Dewitt on appeal, said in an interview that he does not agree with the court’s concerns regarding sec. 969.02(3) (d).
Schmaal said, “It doesn’t make sense that it is absurd to say, if he is released from jail, he can be charged, but when he is back at jail, he is not released. It is perfectly reasonable, and not absurd at all.”

Schmaal said he has not decided whether to seek review in the Supreme Court, but has recommended that his client do so.

The court also distinguished the case of State v. Orlik, 226 Wis.2d 527, 595 N.W.2d 468 (Ct.App.1999).

Orlik was charged with bail jumping for violating a no contact order while in custody. The Court of Appeals reversed his conviction, because he was never released from custody.

However, Orlik remained in custody because of inability to post the cash bond in that case; Dewitt, in contrast, remained in custody for other reasons.

By signing the bond, the court concluded, he committed himself to following its conditions.

Case analysis

This case provides one more good reason to ensure that a defendant who is granted a signature bond will actually be released from custody — in addition to the complications regarding sentence credit under sec. 973.155 that can arise in these situations.

The opinion is not unexpected, though. The Court of Appeals reached the same result in an unpublished opinion nearly seven years ago. State v. Miller, 2002 WI App 1, 249 Wis.2d 488, 639 N.W.2d 223 (Table), 2001 WL 1340709 (Wis.App., Nov. 1, 2001).

Nevertheless, the court’s rationale is subject to criticism that at least warrants preserving the objection for possible review in the Supreme Court.

It is understandable that the court would find it absurd that a defendant who is released pursuant to sec. 969.02(3)(d) can only be charged for conduct that occurs on the street, but not for conduct that occurs after he returns to custody.

It would be unreasonable for the state to contend with a defense that, “All the acts occurred between the hours of X and Y, while I was custody every day.”

In addition, such a defendant has still been “released” within the common meaning of the word, the first time he walked out the jailhouse door.

Despite his being in custody at the time of the act constituting bail jumping, the elements are met: he was released; and afterwards, he committed a crime or violated the conditions of his bond in some other way.

In contrast, in Dewitt’s case, there is no comparable absurdity with requiring the state to prove that the acts occurred after a set date and time when the defendant was first released from jail.

Suppose an identically situated defendant engages in the exact some conduct; however, his attorney was familiar with the opinion in Miller, and advised him not to sign the bond until he could actually make cash bail on the felony cases. That defendant could not be charged with bail jumping.

Effectively, the court’s holding treats identical defendants differently, based not on their conduct, but wholly based on their respective attorneys’ familiarity with the law governing signature bonds.